Thursday, January 17, 2019

Imagine going out to dinner with your wife on a Saturday night. She orders a nice bottle of pinot noir. You pour yourself a splash, but just half a glass since you’re driving. Your wife, who had a long day, drinks the rest.

After dinner, you drive home, park the car, and go inside. While watching Bird Box, you knock back a couple Scotches to catch up. The movie done, the two of you begin to retire upstairs when there’s a knock at the door. It’s the police. Someone reported seeing you driving erratically, they say, and they want you to take a breathalyzer. You decline to blow, but relent when officers threaten to arrest you. The machine says your blood alcohol concentration is 85 milligrams per 100 milliliters of blood, .085 percent. The night ends with you in handcuffs, arrested for drunk driving.

Police can stop any driver, anywhere, for any reason and demand their sample.

Under the revised law, known as C-46, which went into effect in December, police can stop any driver, anywhere, for any reason and demand their sample. Furthermore, you could be cited even if you haven’t driven a car in two hours.

“The bill makes it an offence to have a BAC (blood alcohol concentration) or BDC (blood drug concentration) of 0.8 mg per 100 mg of blood within 2 hours after driving,” Joanna Baron, a criminal attorney and national director of the RunnyMede Society, told me. “In other words, you could drive at 6:00 pm with a BAC of zero, come home, have a drink at 6:30 pm, and be arrested in your home at 8:00 pm.”

Good Intentions, Bad Policy

Canadian authorities are defending C-46, pointing out that traffic fatalities are the leading cause of death and injury in Canada.

“I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver,” said David Taylor, Baron said C-46 is “plainly unconstitutional.director of communications for the minister of justice and attorney general of Canada, according to Global News, a Canadian news organization.

Civil libertarians are less impressed. Baron said C-46 erodes the presumption of innocence and is “plainly unconstitutional.”

"Drinking and driving is a scourge and leads to senseless deaths in Canada, as in the United States,” Baron said, “but the government's legislative response is a shocking violation of basic civil liberties unfounded by evidence."

Other Canadian attorneys expressed similar concerns.

"This is a radical departure from previous law, which insulated people against warrantless searches without probable cause," said Toronto-based criminal defense attorney Michael Engel, shortly after the law passed.

What Might Enforcement Look Like?

Consider another scenario. You drive your family to a restaurant. Your wife offers to drive so you can have a few beers, which you do. Someone who saw you drive to the restaurant is concerned, since small children are with you. They call the police, who arrive and administer a breathalyzer.

According to the law, criminal experts say, police could cite you if you failed the sobriety test. It would be incumbent on you to prove in court that you never had a drop of alcohol prior to arriving at the restaurant.

“If [the police] come and find you at the restaurant they can take you out of the restaurant despite the fact you’ve been drinking at the restaurant, maybe you weren’t going to drive away,” Paul Doroshenko, a Vancouver criminal lawyer who specializes in drunk driving cases, told Global News. “It is profoundly stupid, so most people assume it can’t be. But that’s what the law is now, you will see it happen—I guarantee it.”

History suggests that minorities will be most affected by the expanded police powers.

Taylor said the “two-hour rule” was passed to prevent “certain defenses in drunk driving cases,” which seems like another way of saying it’s easier for the state to win prosecutions when citizens don’t have basic civil liberties.

If you think the scenarios I describe are unlikely to happen, that police and prosecutors will naturally use this power responsibly, you might take a look at the video below.

The clip shows an elderly gentleman who recently was stopped by police and forced to submit to a breathalyzer. Why? Because he was leaving the beer store with “an excessive amount of bottles.”

History also suggests that minorities will be most affected by the expanded police powers.

“The experience in Canada of ‘carding' (similar to the American "stop and frisk"), which disproportionately has affected visible minorities, suggests that this new police power is likely to be used in the same way and lead to increased random arrests of people of color,” Baron told me.

Other Canadian commentators agreed that police would be more likely to target minorities.

“It is 100 percent guaranteed,” wroteNational Post columnist Chris Selley. “And everyone from the justice minister to the pro-C-46 Toronto Star editorial board will pretend to be shocked by it.”

At Least We're Not Canada?

Thankfully, the United States has the 4th Amendment, which guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

This prevents Americans from being stopped and interrogated by police officers if they’re seen, say, carrying too many beer bottles.

Still, before Americans get too excited, they should know that Taylor defended Canada’s two-hour rule by pointing out that 16 U.S. states have such laws, statutes that have been upheld by U.S. courts.

Driving while drunk is a bad idea and a serious crime. It should be prosecuted as such, but not by stripping citizens of civil rights and stacking the deck in the favor of the state. Those who are tempted to do so, and would justify themselves by citing their noble ends, would do well to remember the immortal words of Ben Franklin.

They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.

Hopefully, enough of our Canadian friends to the north can channel the spirit of Franklin and find a way to defeat this authoritarian law.